Company Owes You a Paycheck? Here Are the Steps You Need to Take
Q: I am a college student who worked for a software developer over the summer. After I returned to school, my employer contracted with me to continue working on his projects as time allowed. I was to post my hours on the company’s Web site and receive compensation.
But I haven’t been paid. Several employees have confided that the company is out of funds, although it has not filed for bankruptcy protection. These employees also had not received their current paychecks, so I doubt that I’ll be getting mine.
What recourse do I have?
--S.R., Mission Viejo
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A: You and the other employees have a right to be paid for your work.
It appears likely that if other current employees have not been paid their wages, neither will you.
You should write your employer a letter itemizing the exact amount owed to you and setting a deadline for paying you. If you are not successful, you can file a claim with the California Division of Labor Standards Enforcement.
If the company does file for bankruptcy, there is limited priority given in some circumstances to employee claims for unpaid wages. If the company is totally without funds, you might want to confer with an attorney to determine if there is any possible recourse against the company’s directors or shareholders.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Does the Law Protect Exempt Workers’ Rights?
Q: I understand that employees classified as exempt do not receive overtime pay. However, don’t labor laws protect exempt workers by stating that they must be compensated for any hours worked beyond 40 a week--not necessarily with money, but with compensatory time?
Otherwise, what’s to keep employers from taking advantage of exempt workers by making them work unreasonable amounts of time?
--M.E., Irvine
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A: When an employee is exempt, the employer can require the employee to work overtime without additional compensation, whether in money or time off in lieu of money.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Company’s Definition of ‘Salary’ Is Wrong
Q: My brother is a professional who does computer designing of offices.
The company says he is on a salary, but it deducts money from his paycheck if he works less than 40 hours a week and does not pay him when he puts in extra hours.
How can the company define his income as “salary” under these circumstances?
--G.J., Lynwood
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A: Your brother is not being paid a “salary.”
Under state and federal wage and hour laws, an employee is paid a salary only if he or she receives the same amount of money for every week of work, regardless of the number of hours worked in that week.
With very few exceptions, an employee who does not receive a fixed salary is entitled to overtime compensation for all hours worked over eight in a day or 40 in a week. Because he works in the field of computer design, your brother may fit into one of the exceptions, however.
An hourly worker who earns at least $41 per hour is exempt from overtime compensation under state law if he or she is:
* Primarily engaged in intellectual or creative work that requires the exercise of discretion and independent judgment.
* Highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering.
* Primarily engaged in such duties as using systems analysis techniques to determine hardware or software specifications; the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs (including prototypes); or modification of computer programs related to the design of software or hardware for computer operating systems.
--Deborah C. Saxe
Management attorney
Heller Ehrman White
& McAuliffe
Federal Office Can Help Fix Benefit Plan Problem
Q: Six months ago I left my last employer after giving a 30-day notice. Since then I have been unable to convince the company that it has yet to remit to my deferred compensation retirement account the deduction from my last paycheck.
Short of seeking an attorney, what agencies or organizations are available to me to apply pressure to my former employer?
--L.D., Santa Barbara
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A: You should contact the local office of the Pension and Welfare Benefits Administration of the U.S. Department of Labor, which is in Pasadena. It has brought a number of enforcement actions in the past few years against employers that failed to forward employee contributions to employee benefit plans in a timely manner.
--Kirk F. Maldonado
Employee benefits attorney
Riordan & McKinzie
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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at https://www.latimes.com/shoptalk.
